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Abstract: Transcript of the Reasons for Sentence
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R. v. McLaughlin 2013 NWTSC 91 S-1-CR-2013-000085 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - MIKE PATRICK MCLAUGHLIN __________________________________________________________ Transcript of the Reasons for Sentence delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 20th day of November, A.D. 2013. __________________________________________________________ APPEARANCES: Ms. W. Miller: Counsel for the Crown Mr. M. Martin: Counsel for the Accused (Charge under s. 430 of the Criminal Code of Canada) 1 THE COURT: Earlier this week, 2 Mr. McLaughlin pleaded guilty to a count of 3 mischief over $5,000 and now it is my 4 responsibility to sentence him for that offence. 5 Counsel have presented a joint submission in 6 this case. It is well established in law that a 7 sentencing court is required to give a joint 8 submission very serious consideration. 9 Ultimately, the discretion to decide what 10 sentence should be imposed remains with the 11 Court, as I am sure Mr. McLaughlin's counsel told 12 him. But when a joint submission is presented, 13 unless it is clearly unreasonable, it should be 14 followed. 15 In this case, I have no difficulty at all 16 concluding that the position jointly presented by 17 counsel is reasonable. It is within the range of 18 sentences imposed for this type of offence in 19 this jurisdiction, as was demonstrated by the 20 cases that were filed. The joint position was 21 also well supported by very well articulated and 22 thorough submissions presented by both counsel. 23 So I will follow the joint submission in this 24 case, but I still want to spend a few minutes 25 explaining why I have concluded that the sentence 26 that was proposed - one-year imprisonment 27 followed by one-year probation - is appropriate, Official Court Reporters 1 1 because I think reasons are important to put the 2 sentence imposed in some context. 3 The first important aspect of this, of 4 course, is the circumstances of what happened, 5 what Mr. McLaughlin has admitted that he did. 6 He admits that he set fires to two buildings 7 in Inuvik. They were both multi-unit complexes. 8 Each of these buildings was apparently abandoned 9 when this happened. The first fire was set on 10 July 20th, shortly after midnight, and the second 11 one was set two days later, July 22nd, during the 12 evening. 13 Both fires were brought under control within 14 a reasonably short period of time and the 15 buildings were not completely destroyed. The 16 owner of the building has not provided an 17 estimate of damages, nor has he filed a Victim 18 Impact Statement even though, I am told, he was 19 advised of his right to do so. But even without 20 that type of information and without the 21 specifics, Crown and Defence are in agreement 22 that whatever the exact figure of the damage was, 23 it was in excess of $5,000. I heard, also, that 24 the buildings have been boarded up and remain 25 vacant. 26 Mr. McLaughlin was arrested near the scene 27 of the second fire. He was highly intoxicated Official Court Reporters 2 1 and he had a lighter and a can of Pam cooking oil 2 in his possession. 3 He gave two statements to the police where 4 he essentially admitted being responsible for 5 setting the two fires, although he was very 6 intoxicated on both occasions and had limited 7 recall of what happened. He explained, among 8 other things, that he had worked for the owner of 9 these buildings doing general repair work at one 10 of them. He had become concerned about the poor 11 conditions of the building. He considered that 12 they were unsafe for the community. Among other 13 things, he was concerned about sewage leaks from 14 the building. He had spoken to the owner about 15 these concerns, but the owner, he said, had 16 dismissed his concerns. 17 He has a limited recollection of the events, 18 but he was apparently drinking with another man 19 on the evening of July 20th. They had been 20 talking about how dangerous the buildings were. 21 The other man went in first and tried to start a 22 fire without success, and that is when Mr. 23 McLaughlin went in and lit a bag that was full of 24 rags on fire, and this time, evidently, it 25 worked. 26 He also admitted being responsible for the 27 second fire. Official Court Reporters 3 1 I also heard that in addition to being 2 intoxicated with alcohol at the time, he was 3 taking medication as a result of an injury that 4 he had sustained some time before; the dosage of 5 his medication was still being adjusted at the 6 time of these events. He was not supposed to 7 take alcohol while taking this medication. The 8 combination of the alcohol and the medication may 9 have caused him to be more impaired than if he 10 had simply been drinking. Of course it is not 11 possible to know this for sure. In any event, he 12 does take responsibility for his actions. 13 The second important element in any 14 sentencing is the circumstances of the offender. 15 Mr. McLaughlin is 50 years old. He is originally 16 from Ontario but moved to the United States as a 17 young adult. There he ran his own business as a 18 painter and remodeler. Following a divorce in 19 2001, he moved back to Ontario and found 20 employment there. I heard he relocated to the 21 Yukon in 2006 and worked at camps as a head cook. 22 He was responsible, I heard, for large camps. At 23 the last job he held doing that, he was 24 responsible for the food for a camp of 300 25 workers. Then he took employment as a head cook 26 on the Alaska highway and moved to Inuvik in 27 2011. Official Court Reporters 4 1 I also heard that he has done volunteer work 2 in every community where he has lived, including 3 Inuvik. He has volunteered at food banks, 4 homeless shelters, and by all accounts is someone 5 who has always made a positive contribution to 6 the communities that he has lived in. 7 He does have a criminal record. There are 8 entries from the '80s and then a gap from 1984 to 9 2001. Of course from what I have heard, this gap 10 corresponds to the time when he was not living in 11 Canada. So I realize the Canadian CPIC system 12 would probably not include information about what 13 may have gone on in other countries. But there 14 is no information before me about that period of 15 time, so I have to operate on the basis that for 16 almost three decades he was not in trouble with 17 the law. 18 Although the record has a number of entries, 19 it does not disclose crimes that are at the most 20 serious end of the scale. They are 21 property-related crime, a few convictions for 22 drinking and driving and breaches of court 23 orders. Without minimizing the seriousness of 24 those offences, the fact is he has never received 25 a jail term for any of them, except for a term of 26 one day in jail for failure to comply with a 27 recognizance in 2009, and a conditional sentence Official Court Reporters 5 1 that he received in 2010 (a total of 60 days), 2 which is his most recent conviction. He has 3 never been incarcerated, and certainly not for as 4 long as the time he has been on remand since his 5 arrest. This will by far be the most serious 6 conviction on his criminal record, and it marks a 7 rather dramatic increase in the seriousness of 8 his conduct. That difference, unfortunately, 9 will be reflected in the sentence that he 10 receives for that offence. 11 Mr. McLaughlin has a problem with alcohol. 12 I am not sure he has completely come to terms 13 with it. I understood from this counsel that 14 Mr. McLaughlin recognizes that he is an 15 alcoholic. When he was given an opportunity to 16 address the Court, he said he does not drink all 17 the time but sometimes binges. He said he should 18 probably go to A.A. For what it is worth, I 19 think Mr. McLaughlin definitely should go to A.A. 20 and take whatever other steps are available to 21 him to try to address his relationship with 22 alcohol in a serious way. 23 I do not think it is in his interest not to 24 address this issue and I say this for a few 25 reasons. First, the record demonstrates that 26 alcohol has been an issue for him in the past. 27 Twice he was convicted for drinking and driving, Official Court Reporters 6 1 including fairly recently in Whitehorse. He must 2 have been told at those sentencings that the 3 difference between a drinking and driving 4 incident that results in simply that charge and a 5 fine, and a drinking and driving incident that 6 results in someone getting killed in an accident 7 is often just a matter of pure luck. I do not 8 know if the other convictions on his record, or 9 some of them, are also related to drinking, but 10 there is a good chance that they might be. In 11 particular, the breaches. So even apart from the 12 events that I must sentence him for today, 13 alcohol has proven to be a problem for him. 14 Second, what he did in July 2013 was risk 15 his own health by consuming alcohol at a time he 16 was on medication that he was not supposed to be 17 mixing alcohol with. So he put himself at risk 18 in that sense. Third, and most importantly, how 19 he behaved under the influence of alcohol on 20 those occasions is very, very serious. He cannot 21 afford not to address his relationship with 22 alcohol, because, again, the consequences of what 23 happened here could have been far more serious. 24 This takes me to considering the principles of 25 sentencing and why this is such a serious 26 offence. 27 Proportionality is a fundamental sentencing Official Court Reporters 7 1 principle and it means, in simple terms, that a 2 sentence should be proportionate to the 3 seriousness of the offence and the level of 4 responsibility of the offender. 5 This is a serious offence. The crime of 6 mischief is punishable by a maximum of ten years 7 in jail and there is no minimum penalty. That is 8 quite the range, and that is quite the range 9 because the offence itself also covers a wide 10 range of possibility about what type of conduct 11 can make out this charge both from the point of 12 view of how much damage can be caused and, more 13 generally, the seriousness of the circumstances. 14 Committing the crime of mischief by setting 15 a building on fire is, in my estimation, at the 16 more serious end of the spectrum for this 17 offence. Of course, some scenarios could be 18 worse. For example, if it was done with the 19 intention of hurting someone or if someone was 20 actually hurt. But if that happened, the offence 21 charged would probably be a different one. 22 If a property owner allows their property to 23 become a nuisance to others, to be dangerous, to 24 be bad for the environment or otherwise a 25 community hazard, there are lawful methods to 26 address this. From the facts I have heard, it 27 sounds as though there were real issues with Official Court Reporters 8 1 these buildings. But the course of action chosen 2 by Mr. McLaughlin to deal with the situation was 3 completely inappropriate. It was high risk and 4 it was criminal, and I agree with the Crown that 5 the vigilante aspect of the conduct is of great 6 concern. 7 Whatever his reasons were, what 8 Mr. McLaughlin did was exceedingly dangerous for 9 his community. He is very lucky that nothing 10 more serious came of this. For example, what if, 11 unbeknownst to him, someone had snuck into 12 another unit in one of these buildings and had 13 been in there when they were set on fire? What 14 if children had gotten in there; or what if 15 teenagers had been having a party; or what if a 16 homeless person looking for shelter had been in 17 there sleeping; or what if people called to 18 respond to these fires had been injured; what if 19 the fire had not been controlled and had spread; 20 what if there had been another fire somewhere 21 else in the community, say, a house fire with 22 people trapped inside, and the response time had 23 been delayed because so many of the firefighters, 24 many of them volunteers, were already busy 25 attending to these other fires? 26 This type of offence, on its face, cries out 27 for a denunciatory and deterrent sentence. Even Official Court Reporters 9 1 more so here because during submissions I was 2 told, remarkably, about two other recent cases 3 where similar things happened in the community of 4 Inuvik. I heard about an unreported decision 5 from the end of 2012, R. v. Dillon, where a 6 building belonging to the same owner was set on 7 fire. I have been given a copy of the decision 8 in R. v. Bernhardt, 2013 NWTSC 54, where the 9 offender was convicted after trial of setting a 10 vehicle on fire. The sentencing decision says 11 that the motive for the act was unclear but may 12 have been because the offender was angry at 13 someone for rejecting his advances and so he set 14 fire to a vehicle belonging to one of her family 15 members. 16 If there is any kind of sense in Inuvik or 17 elsewhere in this jurisdiction that under certain 18 circumstances it is an adequate course of action 19 to set things on fire as a means to resolve 20 disputes, exact revenge, or deal with abandoned 21 buildings or other property, that sense has to be 22 dispelled and denounced in no uncertain terms by 23 this Court, because, as I said, setting things on 24 fire is inherently dangerous. 25 It is aggravating in this case that this was 26 not done just once but twice. The response by 27 the Court has to be stern, and that is why even Official Court Reporters 10 1 for an offender who does not have a significant 2 criminal record, has a good work history, and 3 could be a very productive, valued member of his 4 community, a jail term is still required. 5 There are also mitigating factors to 6 consider, though. The first is that 7 Mr. McLaughlin has pleaded guilty to this 8 offence. This has saved court time and 9 resources. I heard there would have been several 10 witnesses called at his trial and that there 11 would have been a requirement for a voir dire 12 into the admissibility of his statement. Now 13 that court time can be used to deal with other 14 matters, and there are many other matters that 15 need to be dealt with on the Court's pending 16 list. 17 In addition to saving resources, and very 18 significantly, the guilty plea signals a 19 willingness to take responsibility and the 20 expression of remorse. In this case the guilty 21 plea is not the only indication of that. I heard 22 that very early on during the court process there 23 were discussions between counsel about resolving 24 this matter without the necessity for a trial. I 25 also heard Mr. McLaughlin waived his preliminary 26 hearing, so no witnesses ever had to testify 27 about this. In addition, from the start, he Official Court Reporters 11 1 cooperated with the police. All of that is 2 consistent with him being remorseful and willing 3 to take responsibility for his actions. So that 4 is mitigating. 5 Although the plea does come many months 6 after he was charged, given everything else I 7 have heard, given his waiver of the preliminary 8 hearing and how this matter evolved and the 9 direction it took from the start, I do agree that 10 Mr. McLaughlin should receive the maximum credit 11 for his guilty plea. 12 I must also consider that he has been in 13 custody since his arrest, a period of four 14 months. I heard that one week of that was spent 15 in RCMP cells in Inuvik and the rest was at the 16 North Slave Correctional Centre. I heard that he 17 has put his cooking abilities to good use and has 18 volunteered his work at the kitchen at the 19 correctional centre during his time on remand, 20 and I also heard that his counsel obtained 21 information from his case manager who described 22 Mr. McLaughlin as the "easiest prisoner to deal 23 with". There were no concerns about his 24 behaviour while on remand, and there is little 25 doubt that he would have earned all the remission 26 that he might have been entitled to had he been a 27 serving prisoner. I am satisfied that it is Official Court Reporters 12 1 appropriate to grant him enhanced credit for the 2 time he has spent on remand. 3 I hope that I have made it very clear, 4 however, that Mr. McLaughlin's motive for doing 5 this is not a mitigating factor. Acting in this 6 way because a person thinks it is for the greater 7 good is not mitigating. The element of vigilante 8 justice that I already referred to underscores 9 the need for a denunciatory and deterrent 10 sentence. It does not assist an offender in 11 justifying a more lenient sentence. It provides 12 an explanation for the conduct but not one that 13 mitigates sentence, and that is because there is 14 a significant risk that others might be inclined 15 to take justice into their own hands if the 16 courts were to signal in any way that having a 17 so-called good reason for doing something will 18 result in lesser punishment, particularly when 19 the action in question is so inherently 20 dangerous. 21 For all those reasons that I have been 22 talking about, this is a serious offence of 23 mischief and it calls for a term of 24 incarceration. 25 The sentence that was jointly proposed by 26 counsel is fit in all the circumstances. And in 27 considering, among other things, the Bernhardt Official Court Reporters 13 1 case that was filed that I have already referred 2 to as well as R. v. McNeely, 2007 NWTSC 82, those 3 cases do support the range that is being sought. 4 There are other orders that have been sought 5 and I will address now those orders and I want to 6 set briefly out some comments with respect to 7 them. 8 The first is with respect to probation. It 9 is jointly recommended that Mr. McLaughlin be on 10 probation for one year. The Crown asked that 11 there be a number of conditions on this order and 12 defence agrees that those conditions are 13 reasonable. 14 During the hearing, I raised with counsel 15 the question of the requested complete 16 prohibition from alcohol. I am always concerned 17 about those types of conditions in the event that 18 I am dealing with someone who is not capable of 19 total abstention. At the same time, if this is 20 the kind of conduct that Mr. McLaughlin is 21 capable of when he drinks alcohol, preventing him 22 from doing so may be an important component of 23 protecting the public. And he has said that he 24 is not someone who drinks all the time. He says 25 that stress can sometimes lead him to drink and 26 when he does, he does to excess. 27 His counsel has explained there are certain Official Court Reporters 14 1 factors in Mr. McLaughlin's life right now, in 2 relation to the health of his father, that may 3 bring some stressors to him in the foreseeable 4 future. More specifically, that his father is 5 ill, that Mr. McLaughlin is the executor of the 6 will, and if something should happen to his 7 father, that would inject some stressful elements 8 in his life. On the other hand, if that were to 9 happen and he had those responsibilities, it 10 really would not be a time where he could afford 11 to go on a binge because then he could not carry 12 out those responsibilities. 13 So I have decided to include a no alcohol 14 condition in the probation order but not for the 15 full year. It is the Court's hope that 16 Mr. McLaughlin will make the choice to continue 17 to abstain beyond the time where he will be 18 required to abstain by the probation order. But 19 after having spent a long time in custody, I do 20 think it is helpful to mandate him not to drink 21 for a period of time after his release to give 22 him that added incentive to stay dry while he 23 gets himself back into a more normal pace of 24 life, finds work, and hopefully goes on with 25 positive activities he can engage in. 26 The next issue that was raised was the 27 question of the DNA order. The Crown has sought Official Court Reporters 15 1 one. Mischief is a secondary designated offence 2 for which a DNA order can be made. The Code 3 provides that such an order can be made if the 4 Court is satisfied that it is in the best 5 interests of justice to do so. Paragraph (3) of 6 Section 487.051 says what factors are to be 7 considered and it reads: In deciding whether to 8 make the order, the court shall consider the 9 person's criminal record, whether they were 10 previously found guilty or not criminally 11 responsible for a designated offence, the nature 12 of the offence, the circumstances surrounding its 13 commission and the impact that the order would 14 have on the person's privacy and security of the 15 person and the Court shall give reasons for its 16 decision. 17 I had to consider this issue in R. v. 18 Gosselin, [2009] N.W.T.J. No. 2, in the context 19 of a narcotics case where the offence was a 20 secondary designated offence. The Crown was 21 seeking the order and the defence was opposing 22 it. At paragraph 60 to 64 of that decision, I 23 referred to the applicable principles. In that 24 case, the Crown was relying primarily on the 25 seriousness of the offence in support for its 26 application, and, in the end, I declined to make 27 a DNA order. The Court also considered this Official Court Reporters 16 1 issue in R. v. Bernhardt, supra, at paragraphs 16 2 and 17. It seems that in that case the 3 seriousness of the offence, again, was the main 4 reason why the order was being sought and was the 5 main reason that the order was made. 6 I have considered the factors that are set 7 out in the Code. I do recognize that the offence 8 committed was serious and I have taken into 9 account Mr. McLaughlin's criminal record. There 10 is no indication, however, in that record that he 11 has committed this type of offence or any offence 12 serious enough to warrant his actual 13 incarceration before. 14 I recognize, as did the Court in Bernhardt, 15 that DNA is a useful investigation tool and that 16 DNA procedures are not particularly intrusive. 17 But the usefulness of the tool and the 18 non-intrusive nature of the proceeding could be 19 invoked in every case. Yet, Parliament has 20 chosen to distinguish between primary and 21 secondary offences and has attached different 22 tests to be met when orders are sought in one 23 situation and in the other. The Court did make 24 the order in Bernhardt in a situation that 25 involved setting something on fire. But in that 26 case, it is important to note that the offender 27 did not oppose the making of the order. On the Official Court Reporters 17 1 whole, I have considered this and I am not 2 satisfied that a DNA order should be made, so I 3 decline to make one. 4 The next issue is the question of the victim 5 of crime surcharge. The law has now changed and 6 removes the possibility of waiving the surcharge 7 for hardship reason, but that change does not 8 have a retroactive effect. So I do, in this 9 case, have discretion to waive the surcharge. 10 Considering that Mr. McLaughlin has been on 11 remand since last July and that he was unemployed 12 and essentially homeless at the time of his 13 arrest, and considering that he will spend some 14 further time in custody, I am satisfied that 15 imposing a victim of crime surcharge on him would 16 result in hardship, so I decline to do so. 17 Stand up, please, sir. Sir, for the reasons 18 that I have given, I do agree with the joint 19 submission, so that a sentence of imprisonment of 20 one year is fit. For the four months that you 21 have spent in pre-trial custody, I am going to 22 give you credit for six months. So there will be 23 a further term of imprisonment of six months. 24 You can sit down. 25 I have given Mr. McLaughlin the maximum 26 credit that I am permitted to give under the law. 27 It is not something I do every time someone has Official Court Reporters 18 1 behaved well in jail and would have earned 2 remission. I have done so here because I am 3 satisfied it is justified given his conduct in 4 the jail, the contribution he made through his 5 work in the kitchen, the fact that he has never 6 been sentenced to incarceration before, the fact 7 some of his remand time was spent in cells in 8 Inuvik, and everything else I have heard about 9 his circumstances. 10 I think Mr. McLaughlin was quite right when 11 he said earlier this week that being in jail is 12 really a waste of time. I really think you are 13 right, sir. It is a waste of time, it is a waste 14 of your abilities, and I really hope that I will 15 never see you in a courtroom again, and that no 16 other judge will either. 17 The jail term will be followed by a term of 18 probation for one year. This is to assist you in 19 your integration in the community. You have 20 never spent as much time in custody, as far as I 21 am aware at least, and it will be a transition 22 for you to regain your freedom. 23 The purpose of the probation is to help you, 24 not to set you up for a breach, as I have said 25 before. It is intended to assist you in getting 26 counselling and help to address whatever issue 27 you have with alcohol and whatever other Official Court Reporters 19 1 underlying issues made you act in this reckless, 2 very dangerous way. 3 I say again, you are very lucky that there 4 were not more serious consequences to this. I 5 hope that it is a gigantic wake-up call for you 6 about your relationship with alcohol and the need 7 to address it. 8 From what I have heard, there are a lot of 9 positive things that can be said about you. I 10 hope that when you are released, you will be able 11 to focus on that. Not just because if you commit 12 crimes obviously it would be not good for the 13 community and for whomever you commit these 14 crimes against, but also because it would be very 15 bad for you. Because with this conviction and 16 this sentence on your record, if you are in 17 trouble with the law again, you can expect the 18 sentences will just get longer and longer. 19 The conditions of your probation are going 20 to be simple. You are to report to a probation 21 officer within 48 hours of release. You are to 22 have no contact directly or indirectly with Talal 23 Khatib for reasons that I think are obvious. You 24 are to take counselling as directed, including 25 alcohol counselling. I am going to direct that 26 you abstain absolutely from the consumption or 27 possession of alcohol for the first four months Official Court Reporters 20 1 of your probation order. As I said, I hope you 2 continue to abstain after that, but I have 3 decided to make the abstention period shorter 4 than the full year of probation. This is to give 5 you an additional incentive to address this 6 issue. I have done so because you have told me 7 that you have gone for long periods of time 8 without drinking. 9 It is important that you understand that if 10 you reach a point where you think you cannot 11 comply with this condition, you need to contact 12 Mr. Martin. There is a process that can be done 13 to seek an amendment of the condition of 14 probation. But what you cannot do is simply 15 ignore the condition, because that is a separate 16 offence and more trouble. So I hope you will not 17 make this application, but if it becomes 18 impossible to comply with this condition, there 19 is a mechanism, and Mr. Martin can explain that 20 to you, whereby you can ask the Court to change 21 it for whatever reasons might be applicable at 22 that time. 23 There is A.A. in jail. I know that. I am 24 sure there is A.A. in Inuvik as well. So perhaps 25 a good strategy would be to begin now to try to 26 address this so that you have something to work 27 from when you are actually released. Official Court Reporters 21 1 There is also a condition -- I wanted to 2 ask you, Ms. Miller, you requested a condition 3 that he not attend -- I think you said 7 to 11 4 Inuit Road. I notice one of the buildings was 5 called 7 and 9 and the other one was called 7 and 6 11. 7 MS. MILLER: Yes, Your Honour. I believe 8 -- excuse me. I believe that reflects the 9 various -- 10 THE COURT: Addresses? 11 MS. MILLER: -- addresses of the 12 multi-unit. 13 THE COURT: Seven to eleven Inuit Road? 14 MS. MILLER: Yes, Your Honour. And I 15 believe that is just one building. 16 THE COURT: Okay. So that is how it 17 should be worded then, Mr. Clerk. And that is 18 the condition that you not attend 7 to 11 Inuit 19 Road. 20 Is there anything that I have overlooked, 21 Counsel? Mr. Martin? 22 MR. MARTIN: No, I don't think so, Your 23 Honour. 24 MS. MILLER: No thank you, Your Honour. 25 THE COURT: So I reiterate, Counsel, my 26 thanks to both of you for your very helpful 27 submissions and for your work resolving this Official Court Reporters 22 1 matter. Mr. McLaughlin, I hope that things go 2 better for you -- 3 THE ACCUSED: Thanks. 4 THE COURT: -- from this point. 5 ................................. 6 7 8 Certified Pursuant to Rule 723 of the Rules of Court 9 10 11 Jane Romanowich, CSR(A) 12 Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 23
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